State v. Huey, 1 Conn. App. 724

1 Conn. App. 724 | Conn. App. Ct. | 1984

Lead Opinion

The defendant appeals¹ from a sentence imposed upon him after he pleaded guilty to sexual assault in the third degree in violation of General Statutes53a-72a.² He raises three issues: (1) whether there was a factual basis for his plea of guilty; (2) whether a court can reconsider the sentence it imposed before that sentence is executed; and (3) whether the court imposed the sentence on the basis of alleged criminal behavior which was not proscribed by the statute to which he pleaded guilty.

The defendant was arrested on April 29, 1979, and charged with burglary in the first degree in violation of General Statutes 53a-101 and with sexual assault in the first degree in violation of General Statutes53a-70. In a bill of particulars, the state alleged that the defendant, while armed with a knife, had entered an apartment in New Milford with the intent to commit a sexual assault therein. Once inside he compelled the female occupant to engage in both vaginal and oral sexual intercourse by the use of force and threat of force against her person.

Plea bargaining did not initially result in a disposition of the case. On October 2, 1979, with the agreement of all parties, a presentence investigation and report was ordered. On February 26, 1980, counsel met in the trial judge's chambers at which time the case was set down for plea and sentence on February 28, 1980. The defendant's counsel submitted a detailed sentencing memorandum to the court urging a suspended sentence with successful compliance with a religiously affiliated program known as the "Lighthouse" program to be a special condition of probation.

On February 28, 1980, the defendant pleaded guilty to a substitute information charging him with one count of sexual assault in the third degree in violation of General Statutes 53a-72a. The state made no recommendation regarding sentencing. The assistant state's attorney then recounted the facts of the offense. She stated that the defendant and the victim lived in the same apartment building. When the victim returned home from church, she was accosted by the defendant who was wearing a ski mask and a nylon stocking over his face. The defendant threatened her with a knife, made her undress, blindfolded her with her own dress and had sexual contact with her. These events went on for approximately thirty minutes. Upon further inquiry by the court, the assistant state's attorney stated that, if the case went to trial, the victim would testify that penetration had occurred. The assistant state's attorney also alluded to a statement made by the defendant in which he admitted that he fondled the victim's breasts and "performed oral-genital sex to a fair degree." This was in fact corroborated by the victim's statement. The assistant state's attorney indicated that the state would have difficulty proving penetration because no medical tests were performed on the victim, who had taken a bath immediately after the offense.

The defendant expressly admitted all of the facts of the offense as recited above except the part about vaginal intercourse. He admitted that he had fondled the victim, but claimed that he had had second thoughts and had stopped before intercourse occurred. The trial judge then accepted the defendant's plea, finding that there was an adequate factual basis. The judge stated that he had read both the presentence report and the sentencing memorandum prior to the plea.

The sentencing took place immediately after the plea. The defendant spoke on his own behalf. Under questioning by the court, he again denied penetration but admitted that the victim had requested that he wear a condom and when she could not find one he permitted her to insert a diaphragm. The court indicated on two occasions that the defendant did not deny intercourse prior to the date of the sentencing.

At sentencing, the court emphasized the seriousness of the offense, even by the defendant's own account. It found strong evidence of premeditation and a strong inference of sexual intercourse. The court then stated that the defendant's denial of intercourse undercut a timely rehabilitative effort. The court then imposed a sentence of not less then two or more than four years.³

The defendant then moved for a hearing to reconsider the sentence claiming that the court had improperly considered the disputed evidence of whether vaginal sexual intercourse had occurred. The court denied the motion and ruled that it did not have the power to reconsider the sentence imposed and that even if it did have such power, it would not exercise it.

The question of whether there was a factual basis for the plea is twofold: (1) that the definition of sexual contact in General Statutes 53a-65(3) requires that the other person be not married to the actor; and (2) that, under General Statutes 53a-67(b), it is an affirmative defense that the defendant and the alleged victim were living together by mutual consent in a relationship of cohabitation. Since no such affirmative defense was made by the defendant, we do not consider this prong of the question.

On appeal, the defendant now claims for the first time that there was no factual basis establishing that the parties were not married to each other.⁴ Practice Book 713 provides: "The judicial authority shall not accept a plea of guilty unless he is satisfied that there is a factual basis for the plea." Guilty pleas have been invalidated in those cases where the facts to which the defendant assented on the record failed to reveal all the elements of the crime charged. State v. Cutler,180 Conn. 702, 704-705, 433 A.2d 988 (1980); State v. Marra, 174 Conn. 338, 343-45, 387 A.2d 550 (1978); State v. Bugbee, 161 Conn. 531, 535, 290 A.2d 332 (1971).

In this case the state claims that there is on the record sufficient information from which to establish a factual basis for the guilty plea. Prior to the acceptance of the plea, the assistant state's attorney stated that "the victim of the crime and Mr. Huey and his family live in the same apartment building in New Milford, Connecticut." (Emphasis added.) The bill of particulars reveals that the victim and the defendant did not share the same surname.

Were this not sufficient, the court could rely on other sources of information available to it. The court stated in State v. Marra, supra, 346, that: "The fact that the record reveals inadequate factual support for either plea in no way suggests that further facts, properly submitted to a court or jury, could not support a conviction for the crimes charged. That question is not now before this court. The only issues decided concern the sufficiency of the facts before the court at the time the pleas were entered."

An evidentiary hearing is not required on a motion to withdraw a guilty plea "if the record of the plea proceeding and other information in the court file conclusively establishes that the motion is without merit. See Fontaine v. United States, 411 U.S. 213, 215,93 S.Ct. 1461, 36 L.Ed.2d 169 (1973)." (Emphasis added.) State v. Lasher, 190 Conn. 259, 265, 460 A.2d 970 (1983), quoting State v. Torres, 182 Conn. 176, 185,438 A.2d 46 (1980).⁵

The court had before it and read both the presentence report and the defendant's sentencing memorandum at the time of the plea. The defendant's sentencing memorandum, prepared by his counsel, specifically mentioned his wife and two children and stated that the defendant enjoyed a happy marriage. The memorandum stated that the same pastor assisted both the defendant and the victim and their respective spouses subsequent to the crime. There are numerous other references to the defendant's family in the memorandum.

Evidence known to the judge both from the record and from the file conclusively established the factual basis for the plea. The defendant's claim to the contrary is without merit.

II On May 15, 1980, the defendant moved for a hearing to reconsider the sentence which the court denied after a hearing on May 28, 1980.⁶

There is strong authority that the trial court had residual power to alter the indefinite sentence imposed upon the defendant. "[A] sentence in a criminal case may be modified at any time during the term of court at which it was imposed, if no act has been done in execution of it." State v. Nardini, 187 Conn. 109, 123,445 A.2d 304 (1982); State v. Pallotti, 119 Conn. 70, 74,174 A. 74 (1934). The record before us does not furnish any basis for determining what steps, if any, the defendant may have taken after sentencing that would negate this rule.

The defendant's sentence was stayed by taking the appeal. Practice Book 946; General Statutes 54-95. Practice Book 934 provides for reductions in definite sentences; 935 provides for the correction of an illegal sentence within 90 days. Neither section applies in this case since the sentence was indefinite and not illegal. We need not decide this issue, however, since the court's ruling, if erroneous, is harmless error since, as the court indicated, the claimed error could not possibly have changed its decision. See State v. Ruth,181 Conn. 187, 196-97, 435 A.2d 3 (1980).

III The defendant's claim that the court improperly considered evidence of the defendant's having penetrated the victim's vagina is essentially a claim that the sentence is excessive.

The trial court carefully considered the direct and inferential evidence as well the defendant's earlier statement to the effect that sexual intercourse did take place. In denying the defendant's request for a suspended sentence and conditional probation, the court quite properly considered the defendant's refusal to admit to penetrating the victim, in the face of what the court felt was strong evidence of sexual intercourse, as indicative of a lack of a rehabilitative effort on the part of the defendant.

In any event, it has long been the law in Connecticut that an appellate court will not review the proper exercise of the court's discretion in sentencing a defendant within the statutory limits for the offense charged.⁷ State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982); State v. Williams, 173 Conn. 545, 558,378 A.2d 588 (1977).

The defendant claims, without citing authority in his brief, that the sentence was improper. A sentencing judge is not bound to a strict adherence to the rules of evidence which apply at a trial. The court exercises wide discretion in the sources and types of evidence which it may consider. Roberts v. United States,445 U.S. 552, 556, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980); Williams v. New York, 337 U.S. 241, 247,69 S.Ct. 1079, 93 L.Ed. 1337 (1949); State v. Harmon,147 Conn. 125, 128, 157 A.2d 594 (1960); State v. LaPorta,140 Conn. 610, 612, 102 A.2d 885 (1954); State v. Van Allen, 140 Conn. 39, 44, 97 A.2d 890 (1953); State v. Cuchelow, 128 Conn. 323, 324, 22 A.2d 780 (1941); see Williams v. Oklahoma, 358 U.S. 576, 585,79 S.Ct. 421, 3 L.Ed.2d 516, reh. denied, 359 U.S. 956,79 S.Ct. 737, 3 L.Ed.2d 763 (1959) (hearsay); United States v. Cijarelli, 401 F.2d 512, 514 (2d Cir.), cert. denied,393 U.S. 987, 89 S.Ct. 465, 21 L.Ed.2d 448 (1968) (evidence of other crimes for which defendant had been neither tried nor convicted.) Our statutes also recognize the wide range of information which the sentencing court should consider. General Statutes 54-91a (c) provides, in part, that a presentence investigation should consider the circumstances of the offense, the attitude of the victim, and the criminal record, social history, and present condition of the defendant.

The defendant's claim that the sentence was excessive properly belongs before the sentence review division.⁸ See General Statutes 51-194 et seq. The defendant's claim that the sentence was improper is without merit.

There is no error.

In this opinion TESTO, J., concurred.

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Concurrence Opinion

I agree with the majority in its conclusions as to the three issues raised by the defendant. I do not, however, agree with the reasoning of the majority which led it to conclude that the sentence imposed by the trial court was proper. It is my view, contrary to that of the majority, that a sentencing court may not consider, in its determination of an appropriate sentence for a defendant, the failure of a defendant to admit he is guilty of an element of a crime to which he has not pleaded guilty and with which he was not ultimately charged.

The defendant was originally charged with the offense of sexual assault in the first degree, in violation of General Statutes 53a-70, and with the offense of burglary in the first degree, in violation of General Statutes53a-101. Subsequently, the defendant pleaded guilty to a substitute information charging him with one count of sexual assault in the third degree in violation of General Statutes 53a-72a. General Statutes 53a-70(a) provides that "[a] person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse . . ." whereas General Statutes 53a-72a(a)(1) provides that "[a] person is guilty of sexual assault in the third degree when such person compels another person to submit to sexual contact . . . ."

During the course of taking the defendant's guilty plea and during the course of the sentencing which immediately followed the acceptance of the guilty plea, the defendant refused to admit to the court that sexual intercourse had taken place. Counsel for the defendant, during the sentencing hearing, urged that the defendant receive a suspended sentence and probation, the condition of which was to be successful completion of a rehabilitative program. The trial court stated that there were two things "which pointed . . . in another direction." The first was the seriousness of the crime and the second was that the defendant had made no effort to rehabilitate himself by admitting that sexual intercourse had taken place. The court stated that "it is very difficult for me to accept the defendant's version that there was no sexual intercourse here."¹

The defendant claims that the court erred in imposing a sentence based upon alleged criminal behavior which was not proscribed by the statute to which the defendant pleaded guilty. The majority of this court views this claim as being a complaint that the sentence was excessive. I disagree. The issue posed here is not whether the sentence was excessive but whether certain minimal due process standards attach to sentencing hearings which would preclude the sentencing court from considering, in its quest for an appropriate sentence, the fact that the defendant persisted in his claim of innocence as to an element of a crime to which he had not pleaded guilty and with which he was ultimately not charged.

Although an appellate court will not review the proper exercise of a trial court's discretion to fix a sentence which is within the statutory limits of the crime for which the defendant is being sentenced; State v. Nardini, 187 Conn. 109, 119, 445 A.2d 304 (1982); recent decisional trends cast doubt on whether that discretion is unfettered by any guarantee of due process. The case of Williams v. New York, 337 U.S. 241,69 S.Ct. 1079, 93 L.Ed. 1337 (1949), is the apex of the absolute no-due-process-at-sentencing rule since it approved the use of presentence reports by sentencing courts, regardless of whether such reports contained hearsay, and regardless of the opportunity of the defendant to rebut any such hearsay statements. In a more recent case, Gardner v. Florida, 430 U.S. 349,358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), the Supreme Court of the United States held that the sentencing process should satisfy some due process requirements in cases involving capital punishment. Legal scholars generally agree that the logic of Gardner should be extended to other types of cases and that certain basic due process principles should govern sentencing procedures. Nemerson, "Coercive Sentencing," 64 Minn. L. Rev. 669, 740-750 (1980); Fennell Hall, "Due Process at Sentencing; An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts," 93 Harv. L. Rev. 1615 (1980).

A sentencing hearing, following a guilty plea, is, to the particular defendant, the only really critical stage of the criminal proceedings. A total dichotomy should not exist between the due process procedures required of the state to prove a defendant guilty and the lack of any due process procedures at a sentencing hearing. It may be appropriate at sentencing for a trial judge to attempt to coerce statements from a defendant about the particular crime in order to gain additional information about it for law enforcement officials and to fix a higher sentence for defendants who do not provide such information than for those who do. United States v. Liddy, 397 F. Sup. 947, 951 (D.D.C. 1975); cf. United States v. Garcia, 544 F.2d 681, 682-83 (3d Cir. 1976). Furthermore, there is no impropriety in examining, for the purposes of sentencing, a wide range of information such as the circumstances of the offense, the attitude of the victim, and the criminal record, social history and present condition of the defendant. General Statutes 54-91a(c). I do not agree, however, that it is appropriate, during sentencing, to seek an admission of guilt of a crime of a higher degree of criminality than the crime for which the defendant is being sentenced, under the guise of testing the defendant's repentance or his potential for rehabilitation.

To force the admission of guilt, at a sentencing which follows a guilty plea, of a crime with which the defendant is not charged might jeopardize the defendant's rights in the future, either in connection with a retrial or with an independent trial claiming civil rights violations. See Haring v. Prosise, 462 U.S. 306,103 S.Ct. 2368, 76 L.Ed.2d 595, 603-604 (1983); United Brotherhood of Carpenters Joiners of America v. United States, 330 U.S. 395, 412, 675. Ct. 775,91 L.Ed. 973 (1947); United States v. Broome, 628 F.2d 403 404-405 (5th Cir. 1980).

A trial court should not consider, at sentencing, facts which underlie counts which were dismissed pursuant to a plea bargain. People v. Jones, 108 Cal.App.3d 9,16, 166 Cal.Rptr. 131 (1980). It should not make inquiry into whether the defendant intends to appeal the conviction since that inquiry gives rise to the inference that the severity of the sentence rests upon the defendant's response. Mahoney v. State, 13 Md. App. 105, 113,281 A.2d 421 (1971), cert. denied, 409 U.S. 978,93 S.Ct. 306, 34 L.Ed.2d 241 (1972). After a verdict of guilty, a defendant may continue to assert his innocence and should not be penalized for doing so at a sentencing hearing. United States v. Wright, 533 F.2d 214, 216 (5th Cir. 1976); People v. Costello, 95 Ill. App.3d 680, 687, 420 N.E.2d 592 (1981). A defendant's assertions of innocence at his sentencing hearing, after a trial finding him guilty, should not result in a greater penalty, even if the sentencing court believes that he is lying about his innocence. Poteet v. Fauver, 517 F.2d 393,395 (3d Cir. 1975); United States v. Rodriquez, 498 F.2d 302,312-13 (5th Cir. 1974); Thomas v. United States,368 F.2d 941, 945-46 (5th Cir. 1966). A defendant may not be disadvantaged in the sentence rendered because of the trial court's disbelief in the defendant's answers to the court's questions regarding the defendant's failure to confess fully to other criminal behavior unrelated to the particular crime for which he is being sentenced. People v. Westfield, 71 Mich. App. 618, 625,248 N.W.2d 641 (1976).

The defendant in the present case should not have been asked to admit an element of a crime with which he was not charged. To do so was to exact a price from him for exercising his constitutional right to force the state to prove him guilty of sexual assault in the first degree. He chose not to plead guilty to that crime and the state chose not to proceed with a trial for that offense. When the state elected to file a substitute information charging him with the lesser offense of sexual assault in the third degree and he chose to plead guilty to the lesser offense, the trial court was then precluded from attempting, during sentencing, to obtain an admission of guilt of the greater crime. The failure of the defendant to admit that he had sexual intercourse with the victim does not necessarily indicate his reluctance to be restored to a crime-free life. It is equally indicative of his own belief in his own innocence of the crime of sexual assault in the first degree.

Although it is my opinion that the trial court should not have tainted its sentence with the inference that a persistence by the defendant that he was innocent of the crime with which he was originally charged would result in a heavier sentence, I find that the sentence should not be disturbed. The sentence, on the facts of this case, was warranted even without a belief of the trial court in the defendant's desire for rehabilitation. Mahoney v. State, supra; People v. Costello, supra.